State v. Taylor

2014 Ohio 5231

Opinion

[Cite as State v. Taylor, 2014-Ohio-5231.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. W. Scott Gwin, P. J. Plaintiff-Appellee Hon. John W. Wise, J. Hon. Craig R. Baldwin, J. -vs- Case No. 2014 CA 00024 RODNEY TAYLOR

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 2013 CR 01242(B)

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: November 24, 2014

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JOHN D. FERRERO ANTHONY T. KAPLANIS PROSECUTING ATTORNEY 701 Courtyard Center RENEE M. WATSON 116 Cleveland Avenue NW ASSISTANT PROSECUTOR Canton, Ohio 44702 110 Central Plaza South, Suite 510 Canton, Ohio 44702-1413 Stark County, Case No. 2014 CA 00024 2

Wise, J.

{¶1}. Defendant-Appellant Rodney Taylor appeals his convictions for felonious

assault and other charges in the Court of Common Pleas, Stark County. The relevant

facts leading to this appeal are as follows.

{¶2}. This case stems from an altercation in Alliance, Ohio, on the night of July

27, 2013, which resulted in the non-fatal shooting of Brennace Andrews and Malcolm

Sampson.

{¶3}. On the aforesaid date, Ziara Dixon threw a party at her residence in the

area of Webb Avenue and Reed Street in Alliance. More than twenty people attended,

including Appellant Taylor, Diquante "Tink" Dickerson, Brennace Andrews, Malcolm

Sampson, and Greg Sampson (Malcolm's brother). At some point, appellant and

Andrews got into a verbal argument in the kitchen.

{¶4}. Following the argument, appellant and Dickerson left the party. Shortly

thereafter, Andrews and the two Sampson brothers also left the house. While they were

outside, appellant pulled up in a black Toyota. Appellant exchanged words with Greg

Sampson and started shooting toward Andrews, who was approaching Sampson's car,

a Chevrolet Malibu, in order to leave the party. As other party-goers fled the area,

Andrews, Malcolm Sampson, and Greg Sampson jumped into Greg's Malibu. As they

did, Dickerson also started shooting at them. One shot went through the rear window

and struck Malcolm Sampson in the head. Another shot then struck Andrews in the leg

when he tried to exit the car after the rear window was shattered.

{¶5}. Appellant was thereafter indicted by the Stark County Grand Jury on one

count of felonious assault with a firearm specification (a felony of the second degree), Stark County, Case No. 2014 CA 00024 3

one count of discharge of a firearm on or near prohibited premises (a felony of the third

degree), one count of having weapons while under disability (a felony of the third

degree), and one count of inducing panic (a felony of the fourth degree). Appellant

entered pleas of not guilty.

{¶6}. The matter proceeded to a jury trial on January 8-10, 2014. Appellant was

ultimately found guilty on all counts.

{¶7}. Following a sentencing hearing, appellant was sentenced on January 24,

2014 to six years in prison for felonious assault and a consecutive three-year term for

the gun specification. He was further sentenced to a consecutive three-year term for

discharging a firearm on or near prohibited premises, another consecutive three years

for having weapons under disability and a concurrent eighteen-month term for inducing

panic. Appellant was thus sentenced for a total of fifteen years in prison.

{¶8}. Appellant filed a notice of appeal on February 14, 2014. He herein raises

the following three Assignments of Error:

{¶9}. “I . PROSECUTORIAL MISCONDUCT DEPRIVED APPELLANT OF A

FAIR TRIAL IN VIOLATION OF THE FIFTH AND 14TH AMENDMENTS TO THE U.S.

CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION.

{¶10}. “II. THE TRIAL COURT'S FINDING OF GUILTY OF FELONIOUS

ASSAULT WITH FIREARM SPECIFICATION, DISCHARGING A FIREARM ON OR

NEAR A PROHIBITED PREMISES, HAVING A WEAPON UNDER DISABILITY,

INDUCING PANIC WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE

AND WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE. Stark County, Case No. 2014 CA 00024 4

{¶11}. “III. THE TRIAL COURT ERRED IN NOT GRANTING A MISTRIAL

FOLLOWING BAD ACTS TESTIMONY FROM GREG SAMPSON THEREBY DENYING

APPELLANT A FAIR TRIAL.”

{¶12}. We will address the second assigned error first.

II.

{¶13}. In his Second Assignment of Error, appellant contends his convictions

were not supported by sufficient evidence and were against the manifest weight of the

evidence. We disagree.

{¶14}. In reviewing a claim based on the sufficiency of the evidence, “[t]he

relevant inquiry is whether, after viewing the evidence in a light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the

crime proven beyond a reasonable doubt.” State v. Jenks (1991), 61 Ohio St.3d 259,

574 N.E.2d 492, paragraph two of the syllabus.

{¶15}. Appellant was first convicted of felonious assault, which is set forth in R.C.

2903.11(A)(2) as follows: "No person shall knowingly *** [c]ause or attempt to cause

physical harm to another or to another's unborn by means of a deadly weapon or

dangerous ordnance."

{¶16}. Appellant was also convicted of one count of discharging a firearm on or

near prohibited premises. R.C. 2923.162(A)(3)/(C)(2) states in pertinent part: "No

person shall *** [d]ischarge a firearm upon or over a public road or highway." The

offense as charged also contained a "substantial risk of physical harm to persons"

criterion. Stark County, Case No. 2014 CA 00024 5

{¶17}. Appellant was further convicted of one count of having weapons under

disability, in violation of R.C. 2923.13(A)(3), which reads: "Unless relieved from disability

as provided in section 2923.14 of the Revised Code, no person shall knowingly acquire,

have, carry, or use any firearm or dangerous ordnance, if *** [t]he person is under

indictment for or has been convicted of any felony offense involving the illegal

possession, use, sale, administration, distribution, or trafficking in any drug of abuse or

has been adjudicated a delinquent child for the commission of an offense that, if

committed by an adult, would have been a felony offense involving the illegal

possession, use, sale, administration, distribution, or trafficking in any drug of abuse."

{¶18}. Finally, appellant was convicted of inducing panic, which is essentially set

forth in R.C. 2917.31(A)(3)/(C)(3) as follows: "No person shall cause the evacuation of

any public place, or otherwise cause serious public inconvenience or alarm, by ***

[c]ommitting any offense, with reckless disregard of the likelihood that its commission

will cause serious public inconvenience or alarm." The offense as charged also

contained a "physical harm to any person" criterion.

{¶19}. Appellant's main argument boils down to challenging the sufficiency of the

testimony pointing to appellant as a shooter. As appellant points out, although police

officers were able to recover bullet fragments at the scene and at the hospital, no

significant ballistics testimony was presented by the State, nor was additional

incriminating physical evidence provided. Furthermore, appellant did not make any

incriminating statements regarding the shooting.

{¶20}. The record reveals that Diquante Dickerson, who testified for the State,

admitted that both he and appellant briefly left the premises and returned with handguns Stark County, Case No. 2014 CA 00024 6

on the night of the party. Tr. at 210-211. Malcolm Sampson saw appellant display a

gun in his pants while standing in the kitchen prior to the events outside. See Tr. at 257.

Malcolm never saw appellant fire a gun and did not recall hearing any shots until after

he had left the house and gotten inside the Malibu. In addition, neither Dickerson,

Andrews, nor Ziara Dixon said they had seen the shooter, although Dixon had alleged in

an earlier written statement that appellant had "pull[ed] up in a black unknown car

shooting in the air." However, Greg Sampson testified that appellant pulled up in a black

Toyota, asked him "is this what you all want?" and started shooting in Andrews’

direction.

{¶21}. Upon review, viewing the evidence in a light most favorable to the

prosecution, we hold there was sufficient testimony to support a conclusion by the jury,

beyond a reasonable doubt, that appellant, while under disability, fired a handgun in

Andrews' direction, over a public roadway, attempting to cause physical harm to

Andrews and causing alarm to persons present at the party in the process, and that the

pertinent offenses resulted in physical harm to two people.

{¶22}. In regard to appellant's "manifest weight" claim, we note our standard of

review on a manifest weight challenge to a criminal conviction is stated as follows: “The

court, reviewing the entire record, weighs the evidence and all reasonable inferences,

considers the credibility of witnesses and determines whether in resolving conflicts in

the evidence, the jury clearly lost its way and created such a manifest miscarriage of

justice that the conviction must be reversed and a new trial ordered.” State v. Martin

(1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717. See also, State v. Thompkins

(1997), 78 Ohio St.3d 380, 678 N.E.2d 541. The granting of a new trial “should be Stark County, Case No. 2014 CA 00024 7

exercised only in the exceptional case in which the evidence weighs heavily against the

conviction.” Martin at 175, 485 N.E.2d 717. In the case sub judice, the State does not

deny in its response brief that conflicting evidence was presented to the jury. However,

upon review of the record, we are not persuaded that the decisions of the jurors in

assessing the evidence resulted in a manifest miscarriage of justice.

{¶23}. Appellant's convictions were supported by sufficient evidence and were

not against the manifest weight of the evidence. Appellant's Second Assignment of

Error is overruled.

I.

{¶24}. In his First Assignment of Error, appellant argues he was deprived of a fair

trial and due process of law based on alleged prosecutorial misconduct. We disagree.

{¶25}. A conviction will be reversed for prosecutorial misconduct only where it is

clear beyond a reasonable doubt that, absent the prosecutor's comments, the jury

would not have found the defendant guilty. State v. Benge, 75 Ohio St.3d 136, 141, 661

N.E.2d 1019, 1996-Ohio-227. Furthermore, isolated comments by a prosecutor are not

to be taken out of context and given their “most damaging meaning.” See Donnelly v.

DeChristoforo (1974), 416 U.S. 637, 647, 94 S.Ct. 1868, 40 L.Ed.2d 431. Generally, a

prosecutor's conduct at trial is not grounds for reversal unless that conduct deprives the

defendant of a fair trial. State v. Loza (1994), 71 Ohio St.3d 61, 78, 641 N.E.2d 1082.

{¶26}. Appellant directs us to the prosecutor's cross-examination of Ziara Dixon,

who was called as a court's witness pursuant to Evid.R. 614, without objection. See Tr.

Vol. II at 286. The questioning is set forth as follows:

{¶27}. "Q. Do you know Rodney's family? Stark County, Case No. 2014 CA 00024 8

{¶28}. "A. Uh-huh.

{¶29}. "Q. Okay. I couldn't help but notice during the breaks and other times here

during the day that you were with Rodney's family and friends here in the courthouse?

{¶30}. "A. Yeah. We all grew up together, went to school together, played sports

together.

{¶31}. "Q. And did you come here to Court with them today?

{¶32}. "A. No. I came by myself.

{¶33}. "Q. You came here by yourself?

{¶34}. "A. Yes.

{¶35}. "Q. Okay. How long have you known Rodney and his family?

{¶36}. "A. I have known Rodney since elementary.

{¶37}. "Q. That's a pretty long time?

{¶38}. "A. Yeah.

{¶39}. "Q. And did you guys go to school together?

{¶40}. "A. Uh-huh."

{¶41}. Tr. Vol. II at 293-294.

{¶42}. Appellant then connects the above exchange to the prosecutor's closing

argument. At that time, the prosecutor referred to the above exchange (Tr. at 389), then

later stated to the jurors in his rebuttal portion of closing:

{¶43}. "Or perhaps, like Ziara, [some of the witnesses] spent the afternoon out

with the Defendant's family, hanging out, carousing, doing whatever it was they were

doing, so that her story was much different that the story she told the police the day of

and the day after where she said I saw Rodney with a gun." Stark County, Case No. 2014 CA 00024 9

{¶44}. Tr. at 402.

{¶45}. Appellant maintains this deprived him of a fair trial, emphasizing the

dearth of physical evidence pointing to him as the shooter, and the fact that only one

witness testified to actually seeing appellant fire a gun. He urges that the prosecutor's

reference to the witness, Dixon, "hanging out" and "carousing" with appellant's family

was completely unsupported by the evidence.

{¶46}. We note appellant failed to object to the aforesaid alleged instance of

prosecutorial misconduct. Error not raised in the trial court must be plain error in order

to reverse. State v. Johnson (Nov. 19, 1998), Richland App. No. 98–CA–42, 1998 WL

818026, citing State v. Long (1978), 53 Ohio St.2d 91, 372 N.E.2d 804. Notice of plain

error is to be taken with utmost caution, under exceptional circumstances, and only to

prevent a manifest miscarriage of justice. Id. Plain error does not exist unless but for the

error, the outcome of the trial would clearly have been otherwise. State v. Nicholas

(1993), 66 Ohio St.3d 431, 613 N.E.2d 225.

{¶47}. It appears to us that the prosecutor was trying to respond to Dixon's

deviation from her original statement to law enforcement indicating that appellant had

fired a gun from the car. Upon review, assuming, arguendo, the remarks regarding

Dixon's potential bias were improper, we are unpersuaded that they would have

prejudicially affected appellant's substantial rights.

{¶48}. We therefore find no reversible error on the basis of prosecutorial

misconduct.

{¶49}. Accordingly, upon review, appellant's First Assignment of Error is

overruled. Stark County, Case No. 2014 CA 00024 10

III.

{¶50}. In his Third Assignment of Error, appellant contends the trial court erred in

allowing the introduction of alleged prior “bad acts” evidence against him. We disagree.

{¶51}. The admission or exclusion of evidence rests in the sound discretion of

the trial court. State v. Sage (1987), 31 Ohio St.3d 173, 180. As a general rule, all

relevant evidence is admissible. Evid.R. 402; cf. Evid.R. 802. Our task is to look at the

totality of the circumstances in the case sub judice, and determine whether the trial

court acted unreasonably, arbitrarily or unconscionably. State v. Oman (Feb. 14, 2000),

Stark App.No. 1999CA00027. In order to find an abuse of discretion, we must determine

that the trial court's decision was unreasonable, arbitrary or unconscionable, and not

merely an error of law or judgment. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217,

450 N.E.2d 1140.

{¶52}. Evid.R. 404(A) provides that evidence of a person's character is not

admissible to prove the person acted in conformity with that character. Evid.R. 404(B)

sets forth an exception to the general rule against admitting evidence of a person's

other bad acts. The Rule states as follows: “Evidence of other crimes, wrongs, or acts is

not admissible to prove the character of a person in order to show that he acted in

conformity therewith. It may, however, be admissible for other purposes, such as proof

of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of

mistake or accident. * * *.”

{¶53}. Both instances in question occurred during the State’s examination of

Greg Sampson. While describing the argument in the kitchen on the night of the party,

Greg unexpectedly testified: "It was a heated discussion or argument because on my Stark County, Case No. 2014 CA 00024 11

second day home [appellant] had pulled a gun out on me and shot at me." Tr. at 225-

226.

{¶54}. After defense counsel objected and moved for a mistrial, which was

denied, the trial court stated as follows to the jury:

{¶55}. "Ladies and Gentlemen, you did hear an objection to a statement that was

made by the witness in this case. The court has sustained the objection. I am granting a

motion to strike that response. The response is to be completely disregarded by you,

treated as though you never heard it; and you are not to consider it as evidence in this

case nor in your deliberations during this case."

{¶56}. Tr. at 227-228.

{¶57}. Later, the prosecutor was questioning Sampson on re-direct about his

decision to carry a gun after the incident, even though he was apparently violating his

probation by doing so. When asked if he started carrying a gun after the shooting at the

party, Greg stated: "Not exactly. Not until after my house was shot up during the

morning of their arraignment."

{¶58}. Tr. at 243-244.

{¶59}. After defense counsel again objected and moved for a mistrial, which was

{¶60}. "Okay. Ladies and gentlemen, I know it seems like I am telling you more

about what not to consider than I am what to consider. But the last statement that was

made by this witness has been stricken by the Court. Again, you are to disregard it.

Treat it as though you had never heard it. You are to consider it not - it is not to be Stark County, Case No. 2014 CA 00024 12

considered as evidence in this case nor is it to be considered by you at all for any

reason in your deliberation."

{¶61}. Tr. at 247.

{¶62}. We have frequently recognized that juries are presumed to follow and

obey the limiting instructions given them by the trial court. State v. DeMastry, 155 Ohio

App.3d 110, 127, 799 N.E.2d 229, 2003-Ohio-5588, citing State v. Franklin (1991), 62

Ohio St.3d 118, 127, 580 N.E.2d 1. Upon review, given the strength of Greg Sampson's

other testimony, we find appellant has failed to demonstrate an abuse of discretion in

regard to the evidentiary decisions of the trial court under Evid.R. 404.

{¶63}. Appellant's Third Assignment of Error is overruled.

{¶64}. For the foregoing reasons, the judgment of the Court of Common Pleas,

Stark County, Ohio, is hereby affirmed.

By: Wise, J.

Gwin, P. J., and

Baldwin, J., concur.

JWW/d 1031 Stark County, Case No. 2014 CA 00024 13